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Dissenting Prop. 8 judge says 'optimal partnership' is man, woman

February 7, 2012 |  2:08 pm

 The social divide over same-sex marriage rights was apparent even in the opinion issued Tuesday by a three-judge panel of the U.S. 9th Circuit Court of Appeals declaring Proposition 8 to be unconstitutional in California.

Judge N. Randy Smith, who was appointed to the 9th Circuit by President George W. Bush, dissented from the primary holding of Judges Stephen Reinhardt and Michael Daly Hawkins, both named to the court by Democratic presidents, that there was no legitimate governmental interest in depriving gays and lesbians of the right to marry.

Governments have an interest in “a responsible procreation theory, justifying the inducement of marital recognition only for opposite-sex couples” because they are the only ones who can create children from their union, Smith said.


“The family structure of two committed biological parents -– one man and one woman -– is the optimal partnership for raising children,” Smith added.

He noted that states may legitimately prohibit bigamy, incest, bestiality and other sexual relationships condemned by society, as well as impose age limits for marriage or require tests for venereal disease without running afoul of constitutional rights.

“Gays and lesbians are not a suspect or quasi-suspect class” and therefore aren’t entitled to the courts’ more vigilant scrutiny of laws that affect them, Smith said, citing a 22-year-old 9th Circuit ruling.

He also cited Supreme Court Justice Antonin Scalia’s dissent in another landmark Supreme Court ruling on gay rights in 2003 in saying that governments have long sought to regulate behavior considered “immoral and unacceptable.”


Gay marriages won’t resume immediately in California

Gay marriage: U.S. Supreme Court may not hear Prop. 8 appeal

Prop. 8: San Diego mayor, once a gay-marriage foe, cheers ruling

 -- Carol J. Williams

Video: KTLA